BookTalk

By Tanya Golash-Boza, an associate professor of sociology and American studies at the University of Kansas

A critical debate among immigrant rights advocates is whether the battle for immigrants’ rights should invoke human rights or civil rights. The advantage to the civil rights option is that these rights are legally viable in U.S. courts. However, there are severe limits to this approach.

The United States has a strong tradition of civil and political rights, yet, unlike most other nations, it does not give much weight to the social, economic, or cultural rights that are central to the human rights tradition. This means that much of the human rights tradition has no legal foundation in the United States.

The importance of civil rights in legal debates over immigration policy is evident in the current conversation about Arizona’s Senate Bill (S.B.) 1070, and the related Supreme Court case: Arizona v. United States. Oral arguments in this case will be heard on April 25, 2012, and a decision is expected sometime after that.

In the controversy over the Arizona laws, critics have claimed that S.B. 1070 would violate the civil rights of Latinos in the state, as they would be subject to racial profiling. These claims were upheld in court when Judge Susan Bolton of the Federal District Court ruled on July 28, 2010 that Arizona police officers would not be able to check the immigration status of people during the course of stops, detentions, and arrests, as S.B. 1070 had mandated. Her ruling also blocked provisions that allowed police officers to hold anyone arrested for any crime until their immigration status was determined. This ruling is based on the prohibition against arbitrary detention in the U.S. Constitution – a political right. Other provisions blocked by Judge Bolton’s injunction include: 1) the warrantless arrest of anyone suspected of having committed a removable offense, 2) those that made it a crime to fail to apply for or carry alien registration papers, and 3) those that made it a crime for undocumented migrants to solicit, apply for, or perform work.

These rulings marked a gain for the civil and political rights of Latinos and other immigrants in Arizona. If the Supreme Court decides to uphold the injunction, this will be a clear win for the civil and political rights of immigrants in the United States. However, this win would only be a small step towards the realization of the human rights of immigrants.

By Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School, and Professor of Government at the University of Texas at Austin.

I am immensely grateful to be invited to discuss my new book, Framed: America’s 51 Constitutions and the Crisis of Governance, to the readers of ACSblog. I have crafted these comments in a way that highlights what may be an important difference between my take on the Constitution and that of many of my friends in the ACS. Although many, perhaps most of us, share the perception that the contemporary United States is increasingly caught in a “crisis of governance,” attention tends to be addressed at the defects of particular leaders, including, of course, the present majority of the United States Supreme Court. There is much with which I agree in the vision of The Constitution in 2020 set out in the book co-edited by my friends and casebook co-editors Jack Balkin and Reva Siegel.

However, I believe that we cannot begin to diagnose the causes of our crisis by focusing only on what I call the Constitution of Conversation. It can also be described as the litigated Constitution, and it is litigated precisely because clever lawyers are highly skilled in demonstrating that the indeterminate language of, say, the Commerce or Equal Protection clauses of the Fourteenth Amendment, can be used to support a constitutional vision congruent with the collective goals of the lawyers’ clients or perhaps the lawyers themselves (if they are “cause lawyers”). In any event, these conversations are known to all of us, and we see them being spelled out particularly passionately with regard to the Affordable Care Act.

But the most important political realities of the Affordable Care Act are first that it took literally more than a half century to pass after initial proposals by Harry Truman and, secondly, that it is a defective bill in many respects with regard genuinely to getting a handle on the costs of a modern medical system. To explain these realities requires no conversation about the “meaning” of the Constitution. Rather, it requires addressing too-often-ignored “civics class” features of the United States Constitution. How does a bill become a law (or, more practically, why do most legislative proposals have only a snowballs chance in hell of being passed)? The answer lies in the almost insurmountable hurdles set up by the particular American system of bicameralism and the opportunity of presidents to veto any legislation they do not like on policy grounds, with the near impossibility of overrides. I will rejoice when the Supreme Court upholds the Affordable Care Act, as I still think is likely. But it should also be recognized that what the Court will be doing, at best, is saying that a mediocre, albeit necessary, piece of legislation is constitutional if it can run the minefield against progressive legislation established in 1787 and left remarkably unchanged since then. That is the importance of looking at the basic “framing” of the Constitution and the assumptions underlying it. It was designed by people who were basically mistrustful of popular democracy and, more particularly, redistributive legislation. They succeeded quite well in creating a political system that stifles both.

By David J. Bodenhamer, executive director of The Polis Center and a professor of history at Indiana University-Purdue University Indianapolis.

When addressing the Harvard Law School Association in 1913, Oliver Wendell Holmes, Jr. worried that “that fear was translated into doctrines that had no proper place in the Constitution or the common law.” His corrective was simple: “It seems to be at this time that we need education in the obvious more than the investigation of the obscure.” Although Holmes was speaking about socialism and judges he deemed “naïf and simple-minded,” his admonition seems equally appropriate for our own constitutionally contentious era. Of course, bitter disputes over the meaning of the Constitution are nothing new; they have been a hallmark of public discourse since the 39 signing delegates left Philadelphia. So other than a reminder that controversy and division are common to our history, what “education in the obvious” do we require today?

We too often forget that the Constitution is a revolutionary document. It embodied a fundamental re-scripting of assumptions about government. Chief among them was the invention of popular sovereignty, a conception of the people as both rulers and ruled, or as John Jay noted, “sovereigns without subjects” who “had none to govern but themselves.” This concept was necessary to accommodate another innovation, federalism, which James Madison acknowledged was “unprecedented … It stands by itself.” But it was the only way to resolve the inconsistency of imperium in imperio, a sovereignty within a sovereignty. Over two centuries, these solutions, radical for their time (and for ours), have been instrumental in the development of a more democratic and egalitarian nation because once marginalized and excluded groups demanded to be counted among the people who ruled themselves. And they usually succeeded first in the states, Brandeis’s famed “laboratories of democracy,” before the nation-at-large accepted their claims. But as often happens with revolutionary legacies, there is a counter-narrative to this progressive story. The inventions of popular sovereignty and federalism also have produced great mischief: they have offered a veneer of legitimacy to a variety of “isms”— racism, nativism, separatism, and the like — that acted to deny liberty rather than advance it.

By Jonathan Gruber, a professor of economics at the Massachusetts Institute of Technology

The Affordable Care Act (ACA) represents the most fundamental reform of the U.S. health care system of the past 50 years. Such an important social policy change should be widely understood by our citizens so that it can be most effectively implemented. Yet the ACA is sufficiently ambitious and complicated that understanding of the law is quite poor. This is one of the reasons I chose a graphic format for my book, Health Care Reform: What It Is, Why It's Necessary, How It Works.

You can’t understand the need for, and the accomplishments of, health care reform without appreciating the fundamental failure in health insurance markets today. Unless you are offered insurance by your employer, or by the government, there is effectively no meaningful insurance in America. Individuals subject to the harsh “non-group” market face exclusions from pre-existing illness or can be dropped as soon as they become ill. And the key to solving this problem is the individual mandate, which can end insurance market discrimination by promoting broad insurance participation.

At the heart of this reform is what I like to think of as a “three legged stool” designed to solve this problem and, as a byproduct, cover most of our nation’s uninsured. The first leg is insurance market reform which will end the ability of insurance companies to discriminate against the sick; no longer will we be one bad gene or one bad traffic accident away from bankruptcy. The second is the individual mandate, which requires insurance coverage so long as that coverage is affordable (costs less than 8% of income). This mandate is critical; without it, insurers will react to insurance market reform by raising prices because they are afraid only the sick will buy insurance. But you can’t mandate insurance coverage unless it is affordable, which it is not for low income Americans. That’s why we need the third leg of the stool: extensive subsidies that will make health insurance affordable for those living below median income.

In 2008 Speaker Nancy Pelosi created the Office of Congressional Ethics (OCE) to make good on her promise to “drain the swamp” and better police the ethics of Congress. The House of Representatives ethics process had been moribund since the late 1990s when the parties called a truce in the “ethics wars” that had claimed two Speakers and several rank and file members.

At first blush the OCE, which investigates complaints of unethical behavior against members of Congress and refers them to the House Ethics Committee, appears to have been a success. It has been exceedingly active over the course of the past three years, investigating 34 cases and keeping the Ethics Committee busy with a string of referrals.

But with the return of a robust ethics process has come a return of the ethics wars. Sadly, few on Capitol Hill have acknowledged this development, at least in part, because it has primarily affected black members of Congress.

Of the 34 cases handled by the OCE, ten have involved black members and one additional case has involved the black chief of staff for Rep. John Lewis (D-GA). Thus black members, who account for 10 percent of the House of Representatives, have been the subjects of 30 percent of the cases handled by OCE. This has led to some eye-popping developments before the Ethics Committee. At one point in 2010 all of the full cases before the Committee involved black members, and today a majority of the cases before that body involve blacks.

What is to account for this disparity?

When writing my book, Rumor Repression and Racial Politics, which examines black elected officials’ allegations of state and news media repression in the years between 1965 and 1995, I found that the partisan battles of the last thirty years have had a disproportionate effect on black elected officials.